AZ: State had to return MMJ illegally seized from CA patient

The defendant is a California registered medical marijuana user, and she was relieved of the MMJ at a border checkpoint in Yuma. She was originally charged with possession, but it was dismissed because Arizona recognized out-of-state registered MMJ users. She sought return of the MMJ, and the state resisted, claiming that federal law preempted and it would constitute a federal crime of delivery to return it. The court disagreed, finding no preemption because the Sheriff was immune under federal law to comply with state law. 21 U.S.C. § 885(d). Without an actual threat of her federal prosecution, the question of her being prosecuted for receiving is not ripe for review. State v. Okun, 2013 Ariz. App. LEXIS 6 (January 10, 2013):

P17 In the absence of any actual or threatened prosecution of Okun under federal law, and given the immunity that federal law affords the Sheriff for complying with the return order, the question is not ripe. See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1137 (9th Cir. 2000) (if no enforcement action or prosecution is threatened or imminent, the dispute is premature). By the same token, on the facts of this case, the State lacks standing to argue that federal law prohibits Okun from possessing the marijuana. Although Arizona’s constitution does not contain a case or controversy requirement, a party must demonstrate a distinct and palpable injury caused by the complained-of conduct. Karbal v. Ariz. Dep’t of Revenue, 215 Ariz. 114, 116, ¶ 7, 158 P.3d 243, 245 (App. 2007). Here, in the language of Karbal, the Sheriff has no “personal stake” in whether the federal Controlled Substances Act might invalidate Okun’s right under the AMMA to possess an allowable amount of marijuana. See id. The requirement of standing “is consistent with notions of judicial restraint and ensures that courts refrain from issuing advisory opinions, that cases be ripe for decision and not moot, and that issues be fully developed between true adversaries.” Bennett v. Brownlow, 211 Ariz. 193, 196, ¶ 16, 119 P.3d 460, 463 (2005); see also County of San Diego v. San Diego NORML, 81 Cal. Rptr. 3d 461, 472-73 (App. 2008) (county has no standing to raise hypothetical constitutional infirmities of a statute when statute did not cause it injury).